I Can’t Personally Serve My Spouse – A Quick Guide on Divorce When You Can’t Locate Your Spouse, Or They Are Evading Service
Family Law: 28 May 2025
Author: Giselle Roman - Our People
In family law divorce can be a straightforward process particularly when parenting and property matters have already been finalised. However, divorces can become more complex when you don’t know where your spouse is and personal service seems impossible.
This situation is more common than people realise. Separations are often complicated and for various reasons you may have no current contact details for your spouse. You might not know where they live or work, or how to contact them at all. In some cases, people have been separated for a long time before deciding to get divorced, moved on with their lives and have not spoken to their spouse in years. In other cases, they have no contact with their spouse other than having heard that their spouse has moved overseas.
Whatever the circumstances, not knowing where your spouse is does not automatically prevent you from getting divorced in Australia.
The Family Law Act 1975 and the relevant rules provide alternative methods for service when personal service is not possible or appropriate.
In this article, we outline the basic requirements for divorce and explore the available options when personal cannot be completed.
Basic Requirements for Filing a Divorce in Australia
To apply for divorce in Australia you must meet the following requirements:
- You have been separated for at least 12 months (even if under the same roof);
- There is no reasonable likelihood of reconciliation;
- You or your spouse must regard Australia as their home, be an Australian Citizen (by birth, descent or grant of Citizenship) or must have been living in Australia for at least 12 months prior to the filing of the Application.
Where one party has filed a sole application for divorce with the Court, a copy of the application must be personally served on the other party.
If you don’t know where your spouse is, or they are deliberately avoiding service, you still have options.
Substituted Service
If you cannot personally serve your spouse as you don’t know where they live or work, but have another means of contacting them, you may apply for substituted service.
This means you ask the Court for permission to serve the divorce application in another way which is likely to bring the application to their attention. For example:
- You may have an email address;
- You may have a telephone number;
- You may know the address of a close family member or friend;
- You can send it via social media (such as Facebook or Whatsapp).
You will be required to file an Application and Affidavit with the Court which sets out the substituted method and explains the circumstances and the likelihood that your spouse will receive the documents by this other means.
Each case is different and unique and it is important to provide the Court with any information which may help your application and show that your spouse is likely to receive the Court documents if substituted service is granted.
Dispensation of Service
There are also instances where you have no way of locating your spouse, in which case you may apply for dispensation of service.
This means you ask the Court for permission to waive the requirement for personal service entirely by filing an Application and Affidavit in support which sets out the attempts you have made to locate your spouse, as well as the financial implications on you having to continue to locate them.
In this case you should include the following information in your affidavit:-
- The attempts and efforts you have made to locate your spouse (such as through social media, the electoral role, friends and family);
- Any responses received to your enquiries. For example: mail been returned back to sender, their phone number now disconnected, emails are bouncing back;
- An explanation of the circumstances and why you do not have any contact details or information of your spouse’s whereabouts or how they can be contacted;
- Whether you have any ties to your spouse or joint property such as a house, bank accounts or a jointly owned business;
- The last known details that you have of your spouse (such as their address, telephone number or place of employment);
- Details of any child support arrangements in place;
- Details as to whether they are still in Australia or if they have moved overseas;
- Any other information which may be relevant.
After considering your application and the circumstances the Court may grant an order that personal service is not required and is dispensed with.
What Happens Next?
If you have filed an Application for Substituted Service or Dispensation of Service this application will usually be listed on the same day as the divorce hearing. Where there are no children and the divorce application was listed to be heard “in absence” the Court may change the details to require attendance at a hearing instead.
It is important that you get legal advice in relation to a divorce, particularly if you are having difficulties being able to serve your spouse personally.
Need Help with a Complex Divorce?
Please contact one of our experienced family lawyers at Aitken Partners on (03) 8600 6000 if you require assistance with your divorce application. A lawyer from our family law team can help prepare your application, draft affidavits, and ensure all court requirements are met to avoid unnecessary delays and costs.